Homeowners often claim that they did not receive notice of their delinquency from the Association. Sometimes this assertion comes up after the Association files suit against the homeowner. Fortunately, the “Mailbox Rule” can allow the Association to overcome this allegation.
The Mailbox Rule is a common law principle of contract law that when mail is properly addressed and deposited in the mail, with postage properly prepaid, there is a presumption that it was received by the addressee. Colorado courts have also found that where there is no direct evidence of mailing, a presumption of mailing may be established by testimony from a witness who has direct, personal knowledge that the mailing in question was handled in the usual course of business. Reading Ventures, Ltd. V. U.S., 987 F. Supp. 1315 (Colo. 1997) The Association should maintain copies of the notices that were sent to the homeowner as these can be important pieces of evidence at trial to rebut the homeowner’s claim. If litigation has not yet been commenced, providing copies of the notices to the homeowner can clear up questions the homeowner may have had and ultimately resolve the issue without litigation.
Homeowners are typically required to notify the Association of their mailing address. Similarly, Associations have obligations to follow when providing notices to homeowners. For example, if the Association’s governing documents require certain notices to be sent to a homeowner via certified mail, the Association should send the notices via certified mail. While certified mail provides proof that the notice was sent out on a certain date, if the notice is not accepted by the homeowner, there is no presumption the notice was received. Therefore, the Association may want to send the notice via regular mail as well. By doing so, if the certified letter is not accepted and the letter sent by regular mail is not returned, the presumption remains under the Mailbox Rule that the letter was received.